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Abdul Razaak Vs. MashiruddIn Ahmed - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKolkata High Court
Decided On
Case NumberA.F.O.D. No. 281 of 1953
Judge
Reported inAIR1959Cal660,63CWN766
ActsPartnership Act, 1932 - Sections 16, 69 and 69(3)
AppellantAbdul Razaak
RespondentMashiruddIn Ahmed
Appellant AdvocateRabindra Nath Chaudhuri, Adv.
Respondent AdvocateKhitindra Kumar Mitter, Adv.
DispositionAppeal dismissed
Cases ReferredMahadeodas v. Gharulal Parakh
Excerpt:
- .....up to may 1951 and, particularly, with regard to and including the whole of the supply of 35 lacs bricks, as aforesaid, would have to be rendered by the plaintiff who, under the terms of arrangement under the relative partnership deed (ext. 1) was in charge of such accounts, and the account papers for purposes of such accounting will have to be produced in the first instance, by the plaintiff. for the subsequent period that is, from after may 1951 onwards and, particularly, with regard to the supply of the disputed 5 lacs 84 thousand 8 hundred bricks and including the same, the accounts will have to be rendered by the defendant to the plaintiff and any paper or papers necessary for the purpose will, in the first instance, be produced by the defendant.13. subject to the above.....
Judgment:

P.N. Mookerjee, J.

1. This is a short appeal, arising out of a suit for dissolution of partnership and accounts. Briefly stated, the relevant facts are these:

2. On 7th Pous, 1356 B. S. corresponding to December, 22, 1949, the parties before us, who were the plaintiff and the defendant in the court below, entered into a partnership under an agreement, which is Ext. 1 in the case. At the time of entering into that partnership, the parties had already entered into a contract with the Government for supply of 35 lacs of bricks. Predominantly for the purpose of that supply, the partnership was entered into, but there are certain indications in the deed (Ext. 1) itself, under which inter alia the plaintiff had 10 annas share and the defendant 6 annas share in the partnership business, that other works might be undertaken by the parties under and during the continuance of that partnership and there was also no specific term that the said partnership would come to an end on the completion of the above supply to the Government. The plain-tiff's case is that the above quantity of bricks, namely, 35 lacs was duly supplied to the Government by Bhadra 1357 B. S. and account was also taken and adjusted between the parties and distribution of profits made on the basis of that adjustment for the period 7th Pous 1356 B. S. to Bhadra 1357 B. S. There was, thereafter, some trouble between the parties and there was a salish, under which the shares were altered to 8 annas for each of the two parties. The plaintiffs complaint is that, in May, 1951, the defendant purported to have supplied a quantity of bricks, namely, 5 lacs 84 thousand and 8 hundred to the Government professing to act only for himself, and withdrew money on that account separately and appropriated the same. It was inter alia the plaintiff's case that that supply was made out of the excess bricks which had been manufactured in connection with the prior supply of 35 lacs of bricks to the Government. The plaintiff also contended that the defendant fraudulently took the payment under a misrepresentation from the Government that it was his own supply or a supply on his own behalf and not on behalf of the partnership or on behalf of the parties jointly. Upon that footing and upon that allegation, inter alia, he brought the present suit on. March 10, 1952, for dissolution of the partnership and for accounts stating inter alia that the accounts between the parties for the period between the 7th of Pous 1356 B. S. and Bhadra 1357 B. S. having already been adjusted and settled between them, accounts will have to be taken only from after that period; in other words, the plaintiff demanded accounts from the defendant in respect of the manufacture and supply of the 5 lacs 84 thousand 8 hundred bricks, as mentioned thereinbefore.

3. The suit was resisted by the defendant and his principal defence was that the above supply of 5 lacs 84 thousand and 8 hundred bricks was out of bricks, manufactured by the defendant alone and not on behalf of both the parties or of the partnership between them; that the said partnership had ended with the original supply or transaction, namely, the supply of the 35 lacs of bricks, and that the supply of 5 lacs 84 thousand and 8 hundred bricks was made out of bricks, manufactured by the defendant on his own account upon a distinct understanding to that effect with the plaintiff. To these defences a further point was added--and that was very strenuously urged--in this Court, namely, that the suit was barred under Section 69 of the Indian Partnership Act. This point does not appear to have been specifically taken in the written statement, though paragraph 22 thereof may be read somehow to cover it but, at any rate, it was not raised in the issues before the trial Court nor urged before the learned Subordinate Judge at the hearing and we find no reference to it in the judgment of the said Court below. There was also a further defence specifically to the effect that no accounts had at all been taken or adjusted or settled between the parties and the plaintiffs allegation that there was such settlement and adjustment of accounts for the period 7th Pous 1356 B. S. to Bhadra 1357 B. S. was specifically denied. Except this last defence, all the other defences were overruled by the learned Subordinate Judge who passed a decree in favour of the plaintiff, decreeing the suit preliminarily for dissolution of partnership and for accounts for the entire period from the commencement of the partnership till the date of the suit--such accounts being directed to be taken by a Commissioner, to be appointed for the purpose,--holding inter alia that the supply of 5 lacs 84 thousand and 8 hundred bricks, as made by the defendant, was on behalf of the partnership and out of the partnership assets, and, in any event, under Sections 16 and 17 of the Indian Partnership Act, the benefit of that supply also would enure to both parties and the defendant was liable to account for the same to the plaintiff. Against this decree, the present appeal was preferred by the defendant and the plaintiff, in his turn, filed a cross-objection, objecting to the disallowance of his claim or contention that accounts for the period 7th Pous 1356 B. S. to Bhadra 1357 B. S. had been settled and adjusted between the parties and profits distributed on such settlement and adjustment and that, accordingly, accounts were to be taken only for the period thereafter. This appeal and the cross-objection are now before as for disposal.

4. In support of the appeal Mr. Choudhury raised three contentions, namely: (1) that the finding of the learned Subordinate Judge that the partnership between the parties continued during the period of supply of the disputed bricks, namely, 5 lacs 84 thousand 8 hundred, and that the same were supplied out of the partnership assets was wrong; (2) that the learned Subordinate Judge was also in error in applying Section 16 to the present case to the prejudice of the defendant and, at any rate, he ought to have held that there was sufficient contract to the contrary to exclude the application of that section. A similar argument was also advanced with regard to Section 17; and, lastly, (3) Mr. Choudhury contended that the present suit should be held to be not maintainable and should be thrown out in limine upon the view that it was barred under Section 69 of the Indian Partnership Act, his specific argument being that the saying sub-section, namely, Sub-section (3) to that section, did not apply to this case and could not protect the plaintiff's suit.

5. We shall deal with these arguments seriatim.

6. As to the first argument, namely, that the partnership did not continue when the supply of 5 lacs 84 thousand 8 hundred bricks was made, it is enough to point out that, on the materials before the Court in the light of the partnership deed (Ext. 1), and, in particular Clauses 9 and 10 thereof, the learned Subordinate Judge's view is unassailable. It is also clear on the evidence), which has been fully discussed by the learned Subordinate Judge, that, upon a proper and reasonable reading and appreciation thereof, the said supply may well be held to have been made out of the partnership assets. Apart from that, however, Section 16 of the Indian Partnership Act stands, in the facts of this case, as an insuperable bar to the defence on this point. It is admitted by the defendant that, for the manufacture of the bricks, out of which this supply of 5 lacs 84 thousand 8 hundred bricks was made, he had to use the joint kiln and the joint apparatus and machinery, that is, the kiln and the apparatus and machinery which belonged to the admitted partnership between the parties. In the face of this admission, it is difficult for the defendant to escape liability for accounts in respect of this supply upless he could prove satisfactorily a contract to the contrary or, in other words, on his averments in this case, the distinct understanding which he alleged with the plaintiff in this matter. About that understanding, however, there is practically no reliable evidence and we have no hesitation in rejecting the said part of the defence story on the materials before us in agreement with the learned Subordinate Judge. The understanding being out of the way and there being nothing else to suggest that there was any contract to the contrary, Section 16 of the Indian Partnership Act would have full play and would entitle the plaintiff to the benefit of this disputed supply of 5 lacs 84 thousand 8 hundred bricks. That is enough for the purpose of maintaining the decree of the learned Subordinate Judge unless the defence objection under Section 69 of the Indian Partnership Act be accepted and given effect to. It is unnecessary, therefore, to refer to the other Section 17 of the Indian Partnership Act or to say anything more on it than that, in our opinion, that section has little relevance or application in the facts of this case.

7. Coming now to the only remaining defence objection--a defence, not specifically raised or pressed in the trial Court but taken and specifically pleaded by way of objection in the memorandum of appeal in this court,--that the plaintiff's suit was barred under Section 69 of the Indian Partnership Act, we may point out that, in the first place there is nothing on the record to suggest or support the submission that this was a case of unregistered partnership and, upon that preliminary ground, therefore, this objection would fail as the bar of Section 69 cannot, admittedly, apply unless there is an unregistered partnership. In the second place, even assuming that the partnership between the parties was an unregistered one, and, prima facie, therefore, Section 69, Sub-section (1) may nit the present suit, we are fully satisfied that it is saved by the third Sub-section to the said section. The said sub-section (Sub-section 3) is inter alia in these terms:

'The provisions of Sub-sections (1) and (2) shall not affect (a) the enforcement of any right to sue for the dissolution of a firm or for accounts of a dissolved firm ..........'

The suit for dissolution of firm, contemplated in the above sub-section, is comprehensive enough to include a suit for dissolution and accounts, the prayer for accounts being merely incidental to or consequential on the main relief and a necessary corollary or concomitant thereof. This has been held in a series of cases in the different High Courts, namely, Jhandu Mal v. Rulia Ram, AIR 1937 Lah 633, Shibba Mal v. Gulab Rai : AIR1939All735 , overruling an earlier case Magan Behari v. Ram Pratap : AIR1939All535 of that High Court to the contrary and Damodhar Gulabrao v. Khushal Laxman, AIR 1943 Nag 12. There is no direct Calcutta case on the point and the nearest Calcutta case is reported in Mahadeodas v. Gharulal Parakh, : AIR1958Cal703 . But that is plainly distinguishable and is of no help--or hindrance either--and not strictly relevant also, on this particular point, as it was clearly a case of a suit for accounts of a dissolved firm and came directly, therefore, under the second part of Clause (a) of Sub-section (3) as quoted above. In our opinion, however, the correct view of the section or the sub-section has been taken in the three cases of the other High Courts, cited above, and it is enough to express our respectful concurrence with the same. A suit for dissolution is obviously a comprehensive suit and the prayer for dissolution in such a suit is a compendious prayer, including within it, inter alia, also a prayer for accounts. That is clear from the nature of a suit for dissolution of a firm and also from the provisions of Order XX, Rule 15 of the Code of Civil Procedure which provides for a particular type of decree or the particular reliefs which may be given or ought to be given by the Court in such a suit. Clearly, also, a suit for dissolution and accounts is, in substance a combination of two suits or a combination of two reliefs, one after the other and the question of the relief as to accounts really arises after the dissolution of the firm. Strictly speaking, therefore, the prayer for accounts in such a suit follows only on the dissolution of the firm by the decree of the Court and it is, therefore, in effect, a prayer for accounts of a dissolved firm and so comes also within the second part of Clause (a) of Sub-section (3) of Section 69. The only effect again, of taking the other view, limiting the saving provision in the first part of Clause (a) to a suit for dissolution of a firm without a prayer for accounts, would be to drive the plaintiff in such a suit to a second suit for accounts. That will be encouraging and leading to multiplicity of proceedings which should be avoided, whenever possible.

8. In our opinion, therefore, on a proper and reasonable construction of the first part of the saving Clause (a) of Sub-section (3) and also on a proper view of the nature of such suits, a suit for dissolution and accounts of an unregistered firm would be well protected by Sub-section (3) of Section 69 of the Indian Partnership Act from the bar under the earlier sub-section or sub-sections of that section. This objection also, of the defendant-appellant should, therefore, fail and it would fail on the merits too, apart from the technical considerations, as given earlier hereinbefore.

9. In the above view, the defendant's appeal must fail.

10. On the plaintiffs cross-objection it is enough to say that, on the materials before the Court, the learned Subordinate Judge was entirely right in refusing to accept the plaintiff's case that there had been settlement and adjustment of accounts between the parties for the period 7th Pous 1356 B. S. to Bhadra 1357 B. S. Such a contention seems to be improbable on the materials on record, and, for the reasons given by the learned Subordinate Judge, to which nothing need be added, we express our fullest concurrence with his finding upon the same. We do not deem it necessary to refer in detail to the two Exhibits 2 and 2(a), to which reference was made on this point on behalf of the plaintiff respondent, as they, in our opinion, do not contradict or go counter to the above conclusion of the learned Subordinate Judge.

11. The cross-objection, therefore, should also fail.

12. Before parting with this case, however, we ought to clarify one matter. Towards the conclusion of his judgment, the learned Subordinate Judge stated that the account papers of the partnership business before May 1951 must be held to be in the possession of the plaintiff and the plaintiff must produce those account papers before the Accounts Commissioner, to be appointed in the suit. He did not, however, give any specific direction as to the rendering of accounts by the parties, namely, as to who will be liable for which period, in the ordering portion of his judgment and that may create difficulties or complications when the Commissioner goes to take accounts between the parties. We would, therefore, make it clear that the accounts for the period up to May 1951 and, particularly, with regard to and including the whole of the supply of 35 lacs bricks, as aforesaid, would have to be rendered by the plaintiff who, under the terms of arrangement under the relative partnership deed (Ext. 1) was in charge of such accounts, and the account papers for purposes of such accounting will have to be produced in the first instance, by the plaintiff. For the subsequent period that is, from after May 1951 onwards and, particularly, with regard to the supply of the disputed 5 lacs 84 thousand 8 hundred bricks and including the same, the accounts will have to be rendered by the defendant to the plaintiff and any paper or papers necessary for the purpose will, in the first instance, be produced by the defendant.

13. Subject to the above clarification, the appeal and the cross-objection both fail and they are dismissed.

14. Having regard to the divided success between tine parties in the matter of their respective contentions in this Court, we direct that they would bear their own costs here and both the appeal and the cross-objection are dismissed without costs.

Law, J.

15. I agree.


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